Argument Set For Supreme Court "Flow Control" Case

Nov 13: The U.S. Supreme Court has set an argument date of January 8, 2007, in the case of United Haulers Assoc., Inc. v. Oneida-Herkimer Solid Waste Management Authority (Case No. 05-1345). On September 26, 2006, the High Court agreed to hear the case following a previous denial in 2002 [See links to detailed history below]. The case is being appealed from the U.S. Court of Appeals, Second Circuit, February 16, 2006, decision (Case No. 05-2024) which upheld the Northern District of New York decision [See WIMS 3/1/06]. The district court found that the municipal solid waste flow control ordinances enacted and implemented by the Authority did not impose a "differential burden on interstate commerce." Thus, the district court found that the local ordinances did not violate the dormant Commerce Clause. This important flow control case that supports the local regulation and its related recycling program, for the first time raises a local government environmental tort liability and recycling encouragement rationale for local flow control regulations, which have basically been deemed invalid since the U.S. Supreme issued its C & A Carbone, Inc. v. Town of Clarkstown decision in 1994.

In its discussion of the issues involved in the case the Supreme Court says, "This Court held in C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 386 (1994), that 'a so-called flow control ordinance, which require[d] all solid waste to be processed at a designated transfer station before leaving the municipality,’ discriminated against interstate commerce and was invalid under the Commerce Clause because it “depriv[ed] competitors, including out-of-state firms, of access to a local market.” This case presents two questions, the first of which is the subject of an acknowledged circuit conflict: (1) Whether the virtually per se prohibition against 'hoard[ing] solid waste' (Id. at 392) recognized in Carbone is inapplicable when the 'preferred processing facility' (ibid.) is owned by a public entity; [and] (2) Whether a flow-control ordinance that requires delivery of all solid waste to a publicly owned local facility and thus prohibits its exportation imposes so 'insubstantial' a burden on interstate commerce that the provision satisfies the Commerce Clause if it serves even a 'minimal' local benefit."

The Second Circuit said in its decision, "even if we were to recognize that the ordinances burden interstate commerce, we would find that the burden imposed is not clearly excessive in relation to the local benefits conferred by the ordinances... We therefore decline to resolve the former question," and affirmed the district court decision. Additionally, the Appeals Court ruled in part, "The record also demonstrates that financing is not the sole purpose of the flow control ordinances. Rather, the flow control measures substantially facilitate the Counties’ goal of establishing a comprehensive waste management system that encourages waste volume reduction, recycling, and reuse and ensures the proper disposal of hazardous wastes, thereby reducing the Counties’ exposure to costly environmental tort suits. See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992) (holding that “a municipality may be liable as a potentially responsible party if it arranges for the disposal of hazardous substances”).

The Second Circuit continued, "In our view, then, the local benefits of the flow control measures substantially outweigh whatever modest differential burden they may place on interstate commerce. Because the Pike test places the onus on the plaintiffs to show that this burden is clearly excessive in relation to these benefits, we easily find that the Counties’ flow control ordinances do not violate the dormant Commerce Clause, and therefore do not decide whether the ordinances burden interstate commerce at all."

Adding to the interest in the case the U.S. Court of Appeals, Sixth Circuit, in the case of National Solid Wastes v. Daviess County KY (Case No. 04-6498), upheld a district court ruling in a similar case saying that a proposed Daviess County Ordinance was unconstitutional, and enjoined the County from enforcing it [See WIMS 1/25/06]. The Appeals Court cited what it called three relevant waste management cases -- C&A Carbone v. Clarkstown (Supreme Court); Waste Mgmt., Inc. v. Metro. Gov’t (6th Circuit); and Huish Detergents, Inc. v. Warren County (6th Circuit). The Appeals Court said, "The three cases cited above leave little doubt that the Ordinance in this case discriminates against interstate commerce."

The Sixth Circuit Appeals Court also said it refused to adopt what it termed, "the public-private distinction with respect to the dormant commerce clause;" as provided in the Second Circuit Court of Appeals case of United Haulers Assoc., Inc. v. Oneida-Herkimer Solid Waste Mgmt. Authority. The Sixth Circuit called the Second Circuit opinion "a surprising decision," where the it found that a county ordinance that required waste collectors to dispose of solid waste at approved processing sites designated by the county, "did not discriminate against interstate commerce." The Sixth Circuit said, "...this Court respectfully disagrees with the Second Circuit on the proposition that Carbone lends support for the public-private distinction drawn by that court."

Access the Supreme Court docket in the case (click here). Access a more detailed account of the long history in this case from the Medill School of Journalism (click here). Access the Second Circuit opinion (click here). Access the Sixth Circuit opinion (click here).